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CED: An Overview Of The Law — Drainage — Water Sustainability Act (British Columbia)

Water Sustainability Act (British Columbia)

Prepared by H. Peter Eccles, B.A., LL.B.

Drainage (Western) – Part IV — Statutes Governing Drainage Works — British Columbia — Water Sustainability Act

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IV.2.(a) — Water Sustainability Act

§106 The property in and the right to the use and flow of all water in a stream in British Columbia is vested in the government, except insofar as private rights have been established under authorizations. Authorizations may take the form of licences, use approvals, or change approvals. No right to divert or use water may be acquired by prescription.

§107 Under the Water Sustainability Act, the comptroller of water rights or the regional water manager may issue a licence allowing water to be diverted, used or stored for a variety of purposes, including the protection of property, or to facilitate the development of a park or the reclamation, drainage or other improvement of the land. The comptroller, a regional water manager or an engineer may, without issuing a licence, approve the diversion or use of water on conditions considered advisable where a municipality wishes to exercise those powers under the drainage provisions of the Local Government Act which are subject to the Water Sustainability Act, or where the federal or provincial government or other person desires to make changes in and about a stream. Changes may be made in and about a stream only in accordance with the terms and conditions of a change approval, the regulations, the terms and conditions of an authorization, or an order. The diversion or use of water required for a period not exceeding 24 months may be approved by the comptroller or a regional water manager. Such a use approval must not authorize the diversion or use of more than the quantity of water that may be prescribed, the diversion or use of water for a water use purpose that may be prescribed, or the construction, maintenance or use of works that may be prescribed.

§108 Under the Water Sustainability Act, a license may be granted authorizing the diversion or use of water for a land improvement purpose from unrecorded dedicated agricultural water or from a water reserve. A land improvement purpose includes the diversion or impounding of water to facilitate drainage.

§109 The decision maker must ensure that every authorization issued specifies the date of precedence of the rights under the authorization. Where two authorizations take precedence from the same date in respect of two different purposes set out in the Act and in respect of the same stream, the authorization for a land improvement purpose will have a lower rank than that issued for any other purpose.

§110 The Act sets out the procedure for acquiring and amending authorizations, and for their suspension or cancellation. A licence or approval may be cancelled for, inter alia: failure to construct the authorized works within the time specified; failure to comply with the Act or the regulations; failure to comply with a term or condition of the licence or approval; failure to comply with an order of the comptroller, regional water manager or engineer; or a material misstatement or misrepresentation in the application or information furnished with respect to it.

§111 Reasonable care must be exercised by applicants for and holders of authorizations, change approvals, drilling authorizations or permits, to avoid damaging land, works, trees or other property of another person. The same is also required of a person who, in accordance with the regulations or an order of the comptroller, a water manager or an engineer, makes changes in and about a stream or diverts or uses, including stores, water. These people must properly inspect, maintain and repair works constructed, operated or used by the person, in accordance with any prescribed requirements, in accordance with an order, and in a manner, that ensures that the works do not cause a significant risk of harm to public safety, the environment, land or other property. These persons are liable to owners of land or premises for damage or loss resulting from the construction, maintenance, use, operation or failure of the person's works. When an authorization, change approval or permit that authorizes the construction or use of works is abandoned, cancelled or expires, the holder or former holder of the authorization, change approval or permit must ensure that the works are deactivated or decommissioned in accordance with the regulations and orders.

§112 A licensee has the right to expropriate any land reasonably required for the construction, maintenance, improvement or operation of works authorized or necessarily required under the licence. "Works" include anything that can be used for diverting, storing, measuring, conserving, conveying, retarding the flow of, confining or using water.

§113 It is an offence for a person who, without lawful authority: willfully destroys, damages or interferes with authorized works constructed in accordance with the regulations; constructs a ditch or other conduit to connect with the works of a licensee; constructs, maintains, operates or uses works that divert water without authority; or destroys, injures or tampers with works belonging to or placed in position by an applicant, authorization holder, change approval holder or a person acting on behalf of the government of British Columbia or Canada. If a person is convicted of an offence under the Water Sustainability Act, the court, in addition to any punishment, may also order a number of creative sentences, such as prohibiting a person from doing any act that would result in the continuation or repetition of the offence, order such person to remedy the situation, to pay compensation, to perform community service, to pay a sum of money to the Habitat Conservation Trust Fund, to post a bond, to provide information to the minister on such person's activities, to publish the facts relating to the offence, and to comply with any other conditions the court considers appropriate.

§114 The time limit for laying an information for an offence under the Water Sustainability Act is: (a) three years after the date on which the act or omission that is alleged to constitute the offence occurred; or (b) three years after the date on which the minister learned of the act or omission if the minister completes a certificate certifying that date.
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